About Me

Since the 1990s I have been very involved with fighting the military "don't ask don't tell" policy for gays in the military, and with First Amendment issues. Best contact is 571-334-6107 (legitimate calls; messages can be left; if not picked up retry; I don't answer when driving) Three other url's: doaskdotell.com, billboushka.com johnwboushka.com Links to my URLs are provided for legitimate content and user navigation purposes only.
My legal name is "John William Boushka" or "John W. Boushka"; my parents gave me the nickname of "Bill" based on my middle name, and this is how I am generally greeted. This is also the name for my book authorship. On the Web, you can find me as both "Bill Boushka" and "John W. Boushka"; this has been the case since the late 1990s. Sometimes I can be located as "John Boushka" without the "W." That's the identity my parents dealt me in 1943!

Saturday, April 04, 2009

Electronic Frontier Foundation is reporting a potentially damaging ruling from the Second Circuit in trademark law on April 3.

Friday, The Second Circuit reversed a lower court ruling and maintained that a lawsuit against Google by Rescuecom can go forward. EFF’s copy of the Opinion is here. The complaint alleges tradermark infringement, dilution under the Lanham Act, and false presentation of origin.

At issue were programs called Adwords and Keyword Suggestion. The court opinion (here), around page 6, describes how this process works. Rescuecom alleges that the appearance of an ad purchased by a competitor may cause the visitor to believe “trademark confusion as to affiliation, origin, sponsorhip, or approval of service.”

The Second Circuit had previously ruled, in 2002, in the case of “1-800-Contacts v. When-U” that “he use of trademarks to launch ads does not, by itself, trigger trademark liability” (EFF) and that led many observers to believe that the Second Circuit would throw this new case out, following its own precedent. It would seem to me that the passage of the Trademark Dilution Revision Act late in 2006 may have contributed to its partial reversal, because the Revision Act allows for the idea of "prospective" dilution.

However, there at least seems to be a question now as to the practice of letting a company buy and ad based on a keyword based on a competitor. Does this cause “confusion”? To me, no, as long as I understand that I have to actually read the advertisement in context. But ads are not “literary” they way web content like this posting purports to be. The are designed to sell things. Trademark law has to deal with one of the sharpest divides in our free market culture: the practical need to manipulate people to buy things from you, versus the need to educate them to think for themselves. Trademark is designed to make the former efficient enough that people can make a living selling. Copyright law is the tool much more related to the latter social aim.

The ruling does not mean that Rusecom will win at trial. It still has to prove that consumers are really confused. But there is a problem with the “average consumer”. And there are real problems in that consumer mentality varies so much as you go from one area to another. Non-profit organizations (like SLDN, with which I network) have to “sell” an idea, but to an audience that is generally much more educated than one which is out to buy cheeseburgers. What I wonder is how courts can establish any concrete tests for likelihood of confusion in so many contexts. I wonder if the Second Circuit really understood this – a surprise given its 2002 ruling.

Corynne McSherry wrote the legal analysis on Electronic Frontier Foundation’s website yesterday, “Second Circuit Expands Trademark Rights, Restricts Consumer Search Options”, link here. Her analysis indicates the practical effect on sellers of ad space: they cannot easily dismiss litigation on legal grounds, and potential “plaintiff’s bars” can find them easy targets. Again, to me, this sounds like an area where we ought to have a “loser pays” system (an idea advocated by ABC’s John Stossel) to discourage frivolous litigation in volatile areas where it is difficult to articulate clear legal divides, like this one.

On the surface, the litigation doesn’t seem to threaten holders of domain names, or publishers or distributors of book or movie titles with frivolous infringement claims. But the whole infrastructure for Internet self-publishing depends on an effective advertising mechanism, even for publishers who don’t use it, and even for writers or publishers who don’t themselves purchase adwords, because they depend on the mechanism funded by others who do. This is a good example of collective legal “karma”

There is still a trial on merits to follow. I hope that this case, however, will first be appealed to the Supreme Court. This ruling makes for an alarming development.

(Please see also an earlier posting about this case June 10, 2008 on this blog.)

No comments:

Tracking Code

Privacy Policy

Privacy Policy for billboushkatd.blogspot.com

If you require any more information or have any questions about my privacy policy, please feel free to contact me by email at JBoushka@aol.com.

At billboushkatd.blogspot.com , the privacy of my visitors is of extreme importance to me. This privacy policy document outlines the types of personal information is received and collected by billboushkatd.blogspot.com and how it is used.

Log Files Like many other Web sites, billboushkatd.blogspot.com makes use of log files. The information inside the log files includes internet protocol ( IP ) addresses, type of browser, Internet Service Provider ( ISP ), date/time stamp, referring/exit pages, and number of clicks to analyze trends, administer the site, track user’s movement around the site, and gather demographic information. IP addresses, and other such information are not linked to any information that is personally identifiable.

Cookies and Web Beacons billboushkatd.blogspot.com does not use cookies.

DoubleClick DART Cookie

.:: Google, as a third party vendor, uses cookies to serve ads on billboushkatd.blogspot.com .
.:: Google's use of the DART cookie enables it to serve ads to your users based on their visit to billboushkatd.blogspot.com and other sites on the Internet.
.:: Users may opt out of the use of the DART cookie by visiting the Google ad and content network privacy policy at the following link.

Some of my advertising partners may use cookies and web beacons on my site. My advertising partners include ....... Google Adsense

These third-party ad servers or ad networks use technology to the advertisements and links that appear on billboushkatd.blogspot.com send directly to your browsers. They automatically receive your IP address when this occurs. Other technologies ( such as cookies, JavaScript, or Web Beacons ) may also be used by the third-party ad networks to measure the effectiveness of their advertisements and / or to personalize the advertising content that you see.

billboushkatd.blogspot.com has no access to or control over these cookies that are used by third-party advertisers.

You should consult the respective privacy policies of these third-party ad servers for more detailed information on their practices as well as for instructions about how to opt-out of certain practices. billboushkatd.blogspot.com 's privacy policy does not apply to, and we cannot control the activities of, such other advertisers or web sites.

If you wish to disable cookies, you may do so through your individual browser options. More detailed information about cookie management with specific web browsers can be found at the browsers' respective websites.